Lester Hines v. Michael Astrue , 317 F. App'x 576 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3788
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Lester Hines, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Michael J. Astrue, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: December 12, 2008
Filed: March 25, 2009
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Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, District Judge.1
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PER CURIAM.
Lester Hines applied for disability insurance benefits on October 30, 2003,
alleging a disability onset date of October 22, 2002, for physical and mental ailments.
Hines's claim for benefits has been denied at every stage to date. For the reasons
stated herein, we affirm the decision of the district court.2
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
I. BACKGROUND
Hines applied for disability benefits alleging he was disabled due to problems
with his heart, back, and knee. During the hearing before the Administrative Law
Judge (ALJ), Hines introduced evidence from consulting experts, Drs. John Keough
and Louis Bein, relating to Hines's mental condition. The ALJ denied Hines benefits
because his condition failed to meet a listed impairment and because he could perform
other work in the national economy despite not being able to return to his past
employment. Hines does not dispute the ALJ's findings regarding his physical
condition. Instead, Hines focuses his appeal on the ALJ's decision to discredit his IQ
score and the ALJ's determination that Hines does not meet the listed impairment in
12.05C addressing mental retardation. As such, our decision is similarly limited.
Dr. Keough, the first of two consulting psychologists, examined Hines on
September 27, 2005. During the examination, Hines stated that he was in a car
accident while in the ninth grade, and dropped out of high school as a result of injuries
suffered in the accident. Hines did not indicate difficulties in school before dropping
out, and stated he had no history of mental health treatment. Although Dr. Keough
noted that Hines was "somewhat reluctant to cooperate" and "appeared to interact with
the consultant in a superficial manner," he was able to determine that Hines's verbal
and social judgment skills were "quite lacking." And while Hines's memory was
found "to be adequate," Dr. Keough concluded that Hines's capacity to understand and
remember instructions was "mildly impaired by learning disabilities and a history of
alcohol abuse [and he] appear[ed] [to] be experiencing a mild to moderate level of
impairment with regard to his ability in sustaining concentration, being persistent in
tasks, and maintaining an adequate pace in productive activity."
Hines was then examined by Dr. Bein on November 2, 2005. Dr. Bein noted,
among other things, that Hines "was well oriented . . . did not appear to have any
difficulty understanding [ ] questions or the directions for the examination . . . [and
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h]is attention/concentration was adequate." During the examination, Hines stated "he
received special assistance in reading and spelling" while in school, but does not
appear to have elaborated further. An IQ test showed Hines had a verbal score of 66,
a performance score of 75, and a full scale score of 67. The full scale score fell in the
mild mental retardation range, and Hines showed weakness in verbal comprehension.
The performance score fell in the "borderline range of intelligence," and Hines
showed "relative strengths" in "the perceptual organization index . . . and the working
memory index." Dr. Bein concluded by noting that tests suggest organic brain
damage and a "main weakness [] in verbal comprehension."
Other than Drs. Keough's and Bein's testimony, little evidence addressed
Hines's mental condition; rather, most of the evidence focused on his physical
condition. As to evidence of his daily living activities, Hines testified that he cooked
occasionally, but at one point had caused a fire in the kitchen. Additionally, he
claimed that he had problems completing the Social Security forms, and needed his
mother's assistance to complete them. Finally, Hines stated that even though he can
read and write, he has difficulty doing so, especially with regard to remembering what
he read.
After considering the evidence, the ALJ concluded he would give less weight
to Dr. Bein's assessment that Hines suffered from mild mental retardation because that
assessment was inconsistent with the record. First, Dr. Bein's conclusion "did not
recognize [Hines's] prior work history, which included semi-skilled work as a material
handler." Also, the ALJ noted that "the fact that [Hines] has not sought or received
mental health treatment for any cognitive deficits and his ability to understand and
follow what took place at the hearing undermine Dr. Bein's assessment of mild mental
retardation." Thus, Hines failed to satisfy listing requirement 12.05C. Hines
petitioned the Appeals Council for review of the ALJ's decision, but the Council
denied the petition. The district court also affirmed the ALJ's decision. This appeal
followed.
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II. DISCUSSION
We review the district court's decision de novo and the ALJ's decision with
deference. Johnson v. Barnhart, 390 F.3d 1067, 1069 (8th Cir. 2004). The ALJ's
decision must be affirmed if "supported by substantial evidence in the record as a
whole." Id. at 1070. "Substantial evidence is evidence that a reasonable mind would
find adequate to support a decision, considering both evidence that detracts from and
evidence that supports the [ ] decision." Id. We will not reverse a decision, even if
some evidence supports a conclusion contrary to that reached by the ALJ, if it is
"possible to draw two inconsistent positions from the evidence and one of those
positions represents the [ALJ's] findings." Id.To determine whether a claimant is disabled, an ALJ must apply the sequential
analysis outlined in 20 C.F.R. § 416.920. Christner v. Astrue, 498 F.3d 790, 792 (8th
Cir. 2007). First, "the claimant must establish that he has not engaged in substantial
gainful activity." Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). Next, the
claimant must show "he has a severe impairment that significantly limits his physical
or mental ability to perform basic work activities." Id. If the claimant shows the
impairment "meets or equals a presumptively disabling impairment listed in the
regulations, the analysis stops and the claimant is automatically found disabled and
is entitled to benefits." Id. If the impairment does not meet or equal those listed in the
regulations, the claimant must show "he lacks the [residual functional capacity (RFC)]
to perform his past relevant work." Id. If the claimant shows a lack of RFC, "the
burden shifts to the Commissioner . . . to prove that there are other jobs in the national
economy that the claimant can perform." Id.In this case, the ALJ acknowledged that Hines had not engaged in substantial
gainful activity, but found that his severe impairments did not "reach the level of
severity" listed in the regulations. In doing so, the ALJ noted Dr. Bein's findings that
Hines had a verbal scale IQ of 66, a performance scale IQ of 75, and a full scale IQ
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of 67, and, therefore, suffered from mild mental retardation. However, the ALJ
rejected Dr. Bein's assessment in lieu of Dr. Keough's because Hines neither sought
nor received mental health treatment, he could understand and follow the current
proceedings, and his past work experience was inconsistent with mild mental
retardation. The ALJ went on to find Hines lacked the RFC to perform his past work,
but that he could "perform other work that exists in significant numbers in the national
economy." Thus, Hines was not disabled.
On appeal, Hines alleges the ALJ erred in finding his disability did not reach
the level of severity listed in the regulations. Specifically, Hines suggests he satisfied
listing requirement 12.05C in 20 C.F.R. § 404, appendix 1, and is mentally retarded.
Hines claims his IQ meets the quantitative requirements of 12.05C, the onset of his
impairment occurred before age 22, and that he has an additional physical impairment
that limits his ability to perform basic work activities, which are all prerequisites for
obtaining disability benefits. We disagree.
Listing 12.05 allows a person suffering from mental retardation to receive
disability benefits when one of four conditions are met. Maresh v. Barnhart, 438 F.3d
897, 899 (8th Cir. 2006). Hines claims he satisfied the Subpart C condition, which
requires a claimant to show: "(1) a valid verbal, performance, or full scale IQ of 60
through 70; (2) an onset of the impairment before age 22; and (3) a physical or other
mental impairment imposing an additional and significant work-related limitation of
function." Id. An ALJ, however, "is not required to accept a claimant's IQ scores . . .
and may reject scores that are inconsistent with the record." Miles v. Barnhart, 374
F.3d 694, 699 (8th Cir. 2004). In fact, IQ scores "should be examined to assure
consistency with daily activities and behavior." Id. Our inquiry, therefore, is whether
the ALJ's decision to discredit Hines's scores "is supported by substantial evidence on
the record as a whole. If we find such evidence, we must affirm." Clark v. Apfel, 141
F.3d 1253, 1255 (8th Cir. 1998).
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The ALJ did not err in discrediting Hines's IQ scores as there is substantial
evidence in the record to support this decision. First, the ALJ noted that Hines's prior
occupation was a semi-skilled job–a job inconsistent with mental retardation. Second,
the ALJ found Hines's demeanor at the hearing inconsistent with a finding of
retardation. See Miles, 374 F.3d at 699 (holding the ALJ did not err "in relying, in
part, [] on his observation of [claimant] at the hearing in discounting the IQ score").
Finally, the ALJ pointed out that Hines "has not sought or received mental health
treatment for any cognitive deficits." Indeed, this IQ test stands alone in the record
as quantitative evidence of mental retardation. See Clark, 141 F.3d at 1256 ("one-time
evaluation by a non-treating psychologist is not entitled to controlling weight"). It is
also persuasive that prior to Dr. Bein's assessment, Hines neither claimed to suffer
from nor was ever suspected of suffering from mental retardation, despite an extensive
history of seeking disability benefits beginning in the mid-1990s. See id. ("[n]othing
in [claimant's] extensive medical records indicates that [he] was ever suspected of
being mildly mentally retarded").
Hines points to his lack of education, alleged need for special assistance while
in school, and difficulty reading as evidence supporting Dr. Bein's assessment of mild
mental retardation. While Hines did drop out of school around the ninth grade, his
departure appears to have resulted from an injury where he almost lost his right arm,
as opposed to any suggestion of academic inability. And while Hines may have
difficulty reading, he acknowledged that he can read and write. Further, Hines does
not appear to be limited in performing most daily functions as a result of mental
retardation. He obtained a driver's license and is able to pay bills, manage a checking
account and checkbook, and complete money orders. See Clark, 141 F.3d at 1256.
Finally, it does not appear from the record that Hines ever lost a job for lack of
cognitive ability. See Miles, 374 F.3d at 699 (claimant was not terminated for lack
of mental abilities).
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Moreover, even if we view Hines's uncorroborated, self-serving declarations of
receiving special assistance while in school and of having difficulty reading as
evidence supporting a conclusion contrary to that reached by the ALJ, there is also
myriad evidence in the record which supports the ALJ's decision. Thus, when faced
with two inconsistent positions, one of which represents the ALJ's findings, we will
not reverse the ALJ's decision.3
III. CONCLUSION
For the foregoing reasons, we affirm.
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3
Much is said in the briefs about the district court's consideration of Hines's
history of substance abuse, and its affect on Hines's mental condition. The ALJ,
however, noted that Hines "is not being found disabled so the materiality of substance
abuse does not need to be addressed." Thus, because Hines's substance abuse was not
a controlling factor in the ALJ's decision, we need not consider it and any effects it
may have had on Hines's current mental status.
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